Shapiro v. Dailey et al., (2011) 312 B.C.A.C. 115 (CA)

• Judge: Kirkpatrick, D. Smith and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 30, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 312 B.C.A.C. 115 (CA);2011 BCCA 424

Shapiro v. Dailey (2011), 312 B.C.A.C. 115 (CA);

    531 W.A.C. 115

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. OC.044

Laura Rose Shapiro (respondent/plaintiff) v. Randy Wayne Dailey (appellant/defendant) and J & S Dickson Enterprises Ltd. (defendant) and Insurance Corporation of British Columbia (appellant/third party)

(CA038247; 2011 BCCA 424)

Indexed As: Shapiro v. Dailey et al.

British Columbia Court of Appeal

Kirkpatrick, D. Smith and Groberman, JJ.A.

October 28, 2011.

Summary:

The plaintiff sued for damages for injuries suffered in a motor vehicle accident. The defendant was an uninsured motorist. The Insurance Corporation of British Columbia (ICBC) filed an appearance to the action under s. 21(7) of the Insurance (Motor Vehicle) Act.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 770, awarded the plaintiff $1.4 million in damages. ICBC initiated an appeal under s. 20 of the Act. The plaintiff brought a preliminary application, raising the issue of whether ICBC could appear to an action pursuant to s. 21 of the Act on behalf of a defendant as an insured motorist, but following the trial judgment appear on an appeal from the judgment on behalf of the defendant as an uninsured motorist pursuant to s. 20 of the Act.

The British Columbia Court of Appeal held that ss. 20(6) and (7) of the Act did not preclude ICBC from appearing to an action under those provisions after it had previously intervened in the action at trial under s. 21 of the Act.

Insurance - Topic 5009.1

Automobile insurance - Compulsory government schemes - General - Actions (incl. notice, disclosure requirements and choice of procedure) - The plaintiff sued for damages for injuries suffered in a motor vehicle accident - The defendant was an uninsured motorist - The Insurance Corporation of British Columbia (ICBC) filed an appearance to the action under s. 21(7) of the Insurance (Motor Vehicle) Act - The trial judge awarded the plaintiff $1.4 million in damages - ICBC initiated an appeal under s. 20 of the Act - The plaintiff brought a preliminary application, raising the issue of whether ICBC could appear to an action pursuant to s. 21 of the Act on behalf of a defendant as an insured motorist, but following the trial judgment appear on an appeal from the judgment on behalf of the defendant as an uninsured motorist pursuant to s. 20 of the Act - The plaintiff asserted that ss. 20(6) and (7) of the Act create a 30-day limitation period within which ICBC had to intervene in an action under s. 20 - After this period, ICBC was precluded from appearing under that section - In the alternative, she asserted that ICBC was estopped from changing the basis for its intervention in the action because of the prejudice that its change of status imposed on her - The British Columbia Court of Appeal held that ss. 20(6) and (7) of the Act did not preclude ICBC from appearing to an action under those provisions after it had previously intervened in the action at trial under s. 21 of the Act - Whether or not ICBC intervened in an action under s. 20, it had 30 days from notice of a defendant's default before it could be compelled to compensate a plaintiff on a judgment - Section 20(6) did not limit ICBC to 30 days in which to intervene in an action - The 30-day period referred to the period of time after notice of a defendant's default in which ICBC could intervene before it could be compelled to make payment to the plaintiff - Further, the issue of estoppel was not relevant in these circumstances.

Cases Noticed:

Insurance Corp. of British Columbia v. Hosseini (2006), 221 B.C.A.C. 94; 364 W.A.C. 94; 49 B.C.L.R.(4th) 250; 2006 BCCA 4, dist. [para. 3].

Moses v. Kim et al. (2009), 267 B.C.A.C. 53; 450 W.A.C. 53; 90 B.C.L.R.(4th) 367; 2009 BCCA 82, refd to. [para. 3].

Insurance Corp. of British Columbia v. Joseph (1989), 36 B.C.L.R.(2d) 248 (C.A.), refd to. [para. 25].

Statutes Noticed:

Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, sect. 20(6), sect. 20(7) [para. 15]; sect. 21(7) [para. 14].

Counsel:

R.C. Brun, Q.C., and S.M. Rowed, for the appellant, R. Dailey;

K.E. Jamieson, for the appellant, ICBC;

A.C.R. Parsons, for the respondent.

This application was heard at Vancouver, British Columbia, on September 30, 2011, by Kirkpatrick, D. Smith and Groberman, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by D. Smith, J.A., on October 28, 2011.